Date of filing:24.10.2011
Date of disposal:12.05.2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTHAPURAMU.
PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC)
Smt. M.Sreelatha, B.A.,B.L., Lady Member
Monday, the 12th day of May, 2014
C.C.No161/2011
Between:
M.Gopal S/o M.Krishna Murthy,
D.No.28/811, Sangamesh Nagar,
Ananthapuramu. … Complainant
Vs.
1. Telco Constructions Equipment Company Limited,
Jubilee Building 45, Museum Road,
Bangalore – 560 002.
2. The Sales Manager,
M.G.Brothers Industries Private Limited,
Rajahama Palace, Near R.T.C. Bus Stand,
Ananthapuramu.
3. The Manager,
M.G.Brothers Industries Private Limited,
Plot No.175-B, Belur Industrial Area,
Dharwad - 580011,
Karnataka State.
4. Service Manager,
M.G.Brothers Private Limited,
D.No.26-11-310, Jyothi Nagar,
Beside Railway Station Road,
Vedayapalem,
Nellore – 524 004. … Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri V.Rajasekhar, Advocate for the complainant and Sri D.Shyam Prasad, Advocate for the 1st Opposite Party and the Opposite Parties 2 to 4 are called absent and set exparte and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, President (FAC): - This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 to 4 claiming a sum of Rs.5,55,000/- towards loss sustained due to defect in the engine of TATA Hitachi Mode Ex 110 Hydraulic backhoe and Rs.1,00,000/- towards mental agony and Rs.1000/- towards legal notice charges.
2. The brief facts of the complaint are that: - The complainant purchased a TATA Hitachi Mode Ex 110 Hydraulic Backhoe with GP Bucket and Kit for a sum of Rs.33,00,728/- from the 3rd opposite party through the 2nd opposite party which is manufactured by the 1st opposite party. The complainant has purchased the above equipment by taking finance from Magma Fincorp Limited, Kolkata and he has to pay an EMI of Rs.1,05,090/- per month. The complainant used the TATA Hitachi Mode Ex 110 Hydraulic Backhoe with GP Bucket and Kit for one month. Subsequently a defect arised in the engine of the said equipment. The defect was informed to the opposite parties 2 & 3 on 24.07.2011. Then the engineer by name M.Srinivas was sent by 4th opposite party for checking the engine on 03.08.2011 after checking, the said engineer reported that there is some trouble in the engine due to which there was an abnormal sound in the engine. Subsequently the opposite parties after consulting the 1st opposite party, the 4th opposite party assured that the 1st opposite party would replace with a new engine assembly at the earliest date vide letter dt.06.08.2011 to the complainant. Then the 4th opposite party requested the complainant to permit them to recondition the engine for temporary usage and in the meanwhile the new engine would be arranged as early as possible.
3. After overhauling the engine the 4th opposite party handed over the machine to the complainant on 14.08.2011 and assured that a new engine will be provided within 35 days of time vide letter dt.17.08.2011. But the reconditioned engine did not work and the same was informed to the opposite parties again the opposite parties assured that the new engine will be arranged at earliest. Then the complainant wrote a letter dt.22.08.2011 requesting the opposite party to provide a new engine as he was getting loss due to more consumption of diesel besides prior internal defects in the said engine.
4. The complainant sustained heavy loss due to the manufacturing defect of the engine and the complainant has to bear an amount of Rs.10,000/- towards operator’s salary who is specially trained. Further the complainant bore the expenses of Rs.15,000/- towards transportation of the engine to the 4th opposite party. Inspite of the above expenses the complainant has sustained loss of Rs.15,000/- per day due to non-working of the machine. The complainant had to pay an EMI of Rs.1,05,090/- to his financier notwithstanding the condition of the engine whether it works or not. Due to the manufacturing defect of the engine the complainant had to sustain the above loss and has to suffer mental agony. At last the opposite parties replaced the old engine with a new engine Ex110 serial No.444849999. In the meantime the complainant has sustained loss of Rs.15,000/- per day from 24.07.2011 up to 29.08.2011 which works out to Rs.5,55,000/-. Further claimed Rs.1,00,000/- towards mental agony.
5. Counter filed by the 1st opposite party stating that the complainant is not a consumer within the definition of section 2 (1) (d) of Consumer Protection Act,1986. Admittedly the complainant has purchased the machine for commercial purpose and not for the purpose of earning his livelihood by means of self-employment. Hence, the Forum has no jurisdiction to entertain the complaint. The 1st opposite party stated that as the complainant has purchased the machine from the 2nd opposite party there is no cause of action against the 1st opposite party. The 1st opposite party submitted that the averments referred in para No.1 & 2 of the complaint are true and the averments referred to para No.3 of the complaint that the complainant purchased the machine manufactured by the 1st opposite party from the 2nd opposite party is true and correct. The further allegation that the complainant reported to the opposite parties that there was abnormal sound in the engine and immediately on receipt of the complaint the said machine was inspected by the authorized service engineer deputed by Mountain Movers at Gulbarga, Karnataka for inspection of the machine and the machine was inspected by the authorized service engineer on 31.07.2011 at 416 HMR and at that time the machine was at Hubli (Karnataka). The complainant was informed that the machine has to be dismantled to rectify the defect. Subsequently the machine was shifted to Ananthapuramu by the complainant and the service engineer of the authorized dealer, opposite parties 2 to 4 deputed by the 1st opposite party inspected the machine at Ananthapuramu on 03.08.2011 and requested to permit to dismantle the engine. After having detailed discussion the complainant permitted to dismantle the engine and the authorized service engineer of the 2nd opposite party as well as that of TATA Motors dismantled the engine on 04.08.2011 and necessary service was provided to the engine and the machine was brought to operating conditions by 09.08.2011. Subsequently during operation of the machine, the push rod of the engine got loosened and the authorized service engineer tried to rectify the problem. However the complainant has not allowed the service engineer of the opposite parties to inspect and repair the machine and insisted for replacement with a new engine.
6. The 1st opposite party further submits that it is true that an assurance was given to the complainant that the engine would be replaced with a new one since the complainant refused to accept any service being provided to the machine by the opposite parties. The 1st opposite party has arranged for a new engine and the new engine was received by the 2nd opposite party on 13.08.2011. Further the 1st opposite party submits that the new engine delivered was that of a different technology and used for both crane 320 and Ex 110 model Hydraulic Backhoe Excavator. However the complainant was not satisfied with the new engine and therefore necessary arrangements were made on 14.08.2011 in order to dispatch the new engine with same technology as that of the old engine and in the meanwhile the complainant had agreed to recondition the old engine and accordingly the engine was reconditioned and fitted to the machine on 15.08.2011 at 418 HMR and the machine was in a good working condition.
7. The 1st opposite party further submits that as per the business arrangements between the 1st opposite party and their authorized dealers, warranty service to the machines manufactured by the opposite party was provided by trained and qualified service engineers deputed by their dealers. Further the 1st opposite party submits that the engine of the (TATA Ex110) was replaced with new engine on 07.09.2011 under warranty and the machine is in good working condition to the satisfaction of the complainant. Inspite of all efforts being taken by the opposite parties to resolve the problem and while necessary service was being provided to the machine, the complainant alongwith 15 people came to the office of 2nd opposite party on 05.08.2011 and closed the said office forcibly and locked the office by taking keys and returned them only on 17.08.2011 and hindered their work for12 days.
8. The 1st opposite party submits that inspite of all good efforts made by the 1st opposite party as a gesture of goodwill with a view to maintain cordial relationship with the customer no complaint was made against the complainant. In the above circumstances there is no deficiency of service on the part of the opposite parties. Hence there is no cause of action for the complaint, hence requested to dismiss the complaint.
9. Opposite Parties 2 to 4 called absent and set exparte.
10. Basing on the above pleadings, the following points that arise for consideration are:-
- Whether there is any deficiency of service on the part of the opposite parties 1to 4?
ii) To what relief?
11. In order to prove the case of the complainant, the complainant has filed his evidence on affidavit and marked Exs.A1 to A8 documents. On behalf of the 1st opposite party, the 1st opposite party filed evidence on affidavit and no documents marked on behalf of 1st opposite party.
12. Heard both sides
13. POINT NO 1:- The counsel for the complainant submitted that the complainant has purchased TATA Hitachi Mode Ex 110 Hydraulic Backhoe with GP Bucket and Kit for sum of Rs.33,00,728/- manufactured by the 1st opposite party through the 2nd opposite party vide invoice No.12100056 dt.20.06.2011 and the equipment was delivered by the 3rd opposite party. The counsel for the complainant submitted that the complainant has taken loan for the purchase of the said machine from MAGMA FINCORP Limited, Kolakata and the complainant has to pay a sum of Rs.1,05,090/- of EMI per month. The counsel for the complainant submitted that the said equipment was used for one month and after that a defect arised in the engine and the same was informed to the opposite parties 2 & 3 on 24.07.2011 for which the 4th opposite party sent an engineer by name M.Srinivas for checking the engine on n03.08.2011 who after inspecting reported that there was some internal problem due to which there was abnormal sound in the engine. The counsel for the complainant submitted that after discussion with the 1st opposite party, the 4th opposite party has assured that the 1st opposite party would replace it with a new engine at the earliest through letter dt.06.08.2011 to the complainant meanwhile the 4th opposite party requested the complainant to give permission to recondition the engine for temporarily usage and in the meanwhile the 4th opposite party would arrange for a new engine.
14. The counsel for the complainant submitted that after recondition of engine by the 4th opposite party engine was handed over to the complainant on 14.08.2011 and again assured that a new engine would be given to him within 35 days of time vide their letter dt.17.08.2011. But the recondition engine did not work and the same was informed to the opposite parties and once again the opposite party assured that the new engine would be arranged at the earliest possible date. Then the complainant wrote a letter dt.22.08.2011 requesting the opposite party to provide with a new engine forthwith as he was getting loss due to more consumption of diesel besides internal defects in the said engine.
15. The counsel for the complainant argued that all the above facts show that there was a manufacturing defect in the engine of the machine. Due to the defect in the engine the complainant has to suffer mental agony and has to pay the salary of Rs.10,000/- per month to the operator who is specially trained. Further the counsel for complainant argued that the complainant has paid a sum of Rs.15,000/- for transporting the engine to the 4th opposite party. Further the counsel for the complainant argued that the complainant had to sustain a loss of Rs.15,000/- per a day due to the nonworking of the equipment. Further the counsel for the complainant argued that inspite of all this the complainant has to pay a sum of Rs.1,05,090/- to his financier as EMI notwithstanding the condition of the engine whether it works or not. The counsel for the complainant argued that due to the supply of defective engine supplied by the opposite parties the complainant has to sustain a loss of Rs.15,000/- per day from 24.07.2011 to 29.08.2011 which comes to a sum of Rs.5,55,000/- for which the opposite parties are liable to pay further the opposite parties are also liable to pay a sum of Rs.1,00,000/- towards mental agony.
16. The counsel for the 1st opposite party submitted that there is no dispute with regard to the purchase of the equipment from the opposite parties and the opposite parties submitted that it is true that there was defect in the engine of the TATA Hitachi Mode Ex 110 Hydraulic Backhoe with GP Bucket and Kit. The counsel for the 1st opposite party submitted that the equipment was purchased on 20.06.2011 for the first time the complainant intimated the opposite parties that there was some defect in the engine on 24.07.2011 immediately an engineer was deputed by the 4th opposite party 31.07.2011 at 416 HMR who inspected the engine at Hubli, after inspection the complainant was informed that the engine of machine has to be dismantled to rectify the defect. Hence the machine was shifted to Ananthapuramu by the complainant and the service engineer of the authorized dealer of the opposite parties 2 to 4 and inspected the machine at Ananthapuramu on 03.08.2011. The counsel for the 1st opposite party submitted that after having the detailed discussion that the complainant the engine was dismantled on 04.08.2011 and necessary service was provided to the engine and was brought to good operating conditions by 09.08.2011. Further the counsel for the 1st opposite party submitted that during operation of the machine the push rod of the engine loosened and the authorized service engineer tried to correct the defect, but the complainant did not allow the service engineer to rectify the defect and insisted for replacement with a new engine. The counsel for the 1st opposite party submitted that a new engine was received by the 2nd opposite party on 13.08.2011 which is used for both Crane 320 and Ex 110 Model Hydraulic Backhoe Excavator. However the complainant was not satisfied with the new engine and therefore necessary arrangements were made on 14.08.2011 in order to dispatch the new engine of same technology to that of the old engine. Further the counsel for the 1st opposite party submitted that in the meanwhile the complainant had agreed to recondition the old engine and accordingly the engine was reconditioned and fitted to the machine on 15.08.2011 418 HMR and the machine was in good working condition. The counsel for the 1st opposite party argued that as per business arrangements between them and their authorized dealers, warranty service to the machine manufactured by the 1st opposite party was provided by trained and qualified service engineers deputed by their dealers and further argued that the new engine of the machine TATA Ex 110 was replaced with new engine on 07.09.2011 under warranty and the machine was in good working condition and up to the satisfaction of the complainant. The counsel for the 1st opposite party argued that inspite of best efforts of the opposite parties and best services provided to the complainant as soon as his complaint, the opposite parties attended and provided immediate service. Hence the question of deficiency of service does not arise and further argued that the complainant has not filed any expert report as per section 13 (1) © which is mandatory in order to prove that there was a manufacturing defect in the equipment. The counsel for the 1st opposite party argued that as the complainant has failed to prove that there is manufacturing defect with expert opinion and also not established that there is deficiency of service this complaint is liable to be dismissed.
17. After hearing the arguments of both sides and perusing the documents submitted by both sides for the first time the complainant has made a complaint that there is some defect in the engine on 24.07.2011 and immediately an authorized service engineer has inspected the machine on 31.07.2011 i.e., within 4 days from the date of complaint at their site in Hubli. Thereafter the machine was shifted to Ananthapuramu on 03.08.2011 and after detailed discussions with the complainant the authorized service engineer dismantled the engine on 04.08.2011 and provided necessary service to the engine and brought the machine to good operating condition by 09.08.2011. Subsequently during operation of the machine, the push rod of the engine was loosened and the authorized service engineer tried to correct the problem for which the complainant has objected and insisted to replace with new engine. In the above circumstances the opposite parties gave assurance that they would replace it with a new engine and the opposite parties arranged the new engine and the same was received by the 2nd opposite party on 13.08.2011. As the new engine was that of different technology the complainant was not satisfied with the same and insisted for new engine of same technology and as the complainant was not satisfied, the opposite parties have arranged for a new engine of same technology as that of the old engine and in the meantime the old engine was reconditioned and brought to working condition on 15.08.2011 which is not disputed by the complainant. Subsequently the complainant issued legal notice immediately within 8 days i.e., 23.08.2011 for which the opposite party has replied that they are in the process of investigating claims raised in the complainant’s notice and once they receive response from the concerned officials they will be in a position to respond in detail to the claims raised by the complainant. And further stated that under no circumstances should this reply be construed or treated as an admission or acceptance of any allegations/averments contained in the complainant’s legal notice which is marked as Ex.A6.
18. As seen from the documents and after considering the arguments of both sides we are of the view that the opposite parties has promptly responded to the complainant’s complaint and taken necessary steps in order to rectify the defects in the machine and inspite of their best efforts, as the complainant was not satisfied they have assured to replace it with a new engine. The opposite parties should be given some time to get the new engine from the manufacturer and to replace the same. The complainant cannot expect that the opposite parties will provide with a new engine overnight and sufficient time must be given in order to replace the machine with a new engine. After observing the sequence of events as per complainant’s version the total time taken by the opposite parties for replacement with a new engine from the date of complaint (24.07.2011) to the date of replacement (29.08.2011) is 35 days. Inspite of the best efforts made by the opposite parties to rectify the defect and as the complainant was not satisfied with the said old engine, the opposite parties have assured for replacement with new engine which took additional 15 days which is reasonable time in order to get the new engine form the manufacturer i.e., 1st opposite party. The question of deficiency of service arises only when the opposite parties have not taken any steps to rectify the defect within a reasonable time. But in the instant case the opposite parties have made all efforts to rectify the defect within reasonable time. But as the complainant has insisted for a new engine another 15 days’ time was taken by the opposite parties in order to get the new engine of same technology which cannot be considered as a deficiency of service. In the above circumstances we are of the view that there is no lapse on the part of the opposite parties. Hence, there is no deficiency of service on the part of the opposite parties.
19. In the result, the complaint is dismissed without costs.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 12th day of May, 2014.
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT:
NIL
ON BEHALF OF THE OPPOISITE PARTIES
-NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
ExA1. Office copy of the legal notice dt.23.08.2011 got issued by the complainant to the opposite parties.
Ex.A2 Postal acknowledgement signed by 1st opposite party.
Ex.A3 Postal acknowledgement signed by 2nd opposite party.
Ex.A4 Unserved postal envelope of 3rd opposite party.
Ex.A5 Postal acknowledgement signed by 4th opposite party.
Ex.A6 Reply notice dt.25.08.2011 got issued by the 1st opposite party to the counsel for the complainant.
Ex.A7 Photo copy of tax invoice dt.20.06.2011 issued by 3rd opposite party in
favour of the complainant.
Ex.A8 Photo copy of service report issued by Mountain Movers Gulbargha in
favour of the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES 1 to 4
NIL
Sd/- Sd/-
LADY MEMBER PRESIDENT (FAC)
DISTRICT CONSUMER FORUM DISTRICT CONSUMER FORUM
ANANTAPUR ANANTAPUR
